Conflict, Forced Migration and Property Claims

Amidst widespread fighting in Iraq and Syria, millions of distressed civilians have fled their homes. In Yemen as well, war has led to mass displacement as people try to escape threats to their lives and livelihoods. These instances of forced migration create overwhelming immediate problems such as the need for shelter, food and medical care. If insecurity remains a problem, then forced migration can lead to lengthy displacement of people within their own country or in a country of refuge. The longer displacement lasts, the more significant the problems that can develop with regard to land claims and property rights.

Yemen has experienced conflict-related property issues in the past, particularly in the south after the 1994 war, and these problems are likely to appear again as there is no national cadastral system. In Syria, land registries exist in the governorates, but the internal displacement that we see now, layered on top of what occurred in the past, has the potential to create a tangle of property claims that will be difficult to resolve given the complexities of public administration under contested sovereignty. Iraq already serves as an example of how conflict and population displacement can create a morass of property conflicts and compensation claims.

Property-related problems include:

Absence of records. Not everyone fleeing an advancing army remembers to take the title to their house or land with them, or can protect documentary evidence during their displacement.

Contested claims. As a conflict spreads, civilians move to avoid violence or to find protection under a particular group. This movement may lead to situations such as occurred in East Timor, in which people fled rural areas and settled in urban areas, often in the homes of others who had been displaced, creating overlapping property claims.

Conflicting tenure systems. Many displaced people have customary rights to land rather than formal titles. If they are displaced for long periods of time they may find their property occupied by others. In some situations, such as northern Uganda, people have returned from lengthy displacement to find occupants of their customary land who have titled it in their own names.

Loss of memory. If displacement is lengthy, older people die and surviving children may not possess knowledge of where the family property was, or know its extent.

The international community’s current approach to the homes, lands and properties (HLP) of displaced persons is to establish a statutory system to examine documentary evidence once hostilities end. But waiting until war is over marginalizes those who have lost important evidence over time, held property under customary or hybrid tenure systems or had precarious tenure to begin with. It also allows multiple claims to be derived over the course of the war as homes, lands and properties are used as spoils of war and ethnic cleansing. Ultimately these problems can make refugees reluctant to return from host countries.

A emerging project at McGill University seeks to establish ways to begin collecting and organizing HLP evidence in wartime, in order both to retain evidence that would otherwise be lost and to allow return programs to be tailored to evidence actually held, as opposed to what is ideal. The project seeks to work with refugees from the Syrian war to establish a digital archive for a wide variety of evidence useful for HLP reclaiming. Initial work with Syrian refugees in Lebanon, Jordan and Turkey found that very few have HLP documentation, because they fled quickly, or because being caught with such documentation while fleeing would provide information about their HLP and kin. The initial work also found that many refugees do not realize they already possess valuable forms of HLP evidence that could be organized and put in electronic documentary form, such as:

remembered descriptions and histories of HLP, particularly knowledge of details and features that would come only with long-term occupation;

photographs on mobile phones, including selfies, pictures of residential and farming areas and shops, streets and houses;

participation in exercises with satellite imagery and aerial photography that involve locating one’s HLP and identifying the HLP of neighbors and relatives, and recording the network of neighbors, relatives and friends in a particular area.

The project looks at examining the primarily informal, hybridized and customary evidence that refugees do have and how this can be gathered, upgraded, combined and corroborated with other forms of evidence, and then inserted into useful types of cadasters for use in their return to, and restitution of, HLP.

Contested property claims can be a residual source of conflict long after violence ends. Families who lose assets face severe challenges in recovering economically from war and displacement.

The more that can be done to document the property rights of displaced people, the faster the recovery will be when the violence ends.